


<^i 



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Book. 



Enforcement of Fonrteenth Amendment. 



SPEECH f„J^^^'": 

OP 

lim, HORATIO C. BURCIIARD, 

IN THE HOUSE OF REPRESENTATIVES, APRIL 7, 1871. 



The House having under consideration the bill 
(H. R. No. 320) to enforce the provisions of tbo four- 
teenth amendment to the Constitution of the United 
States, and for other i)urposes — 

Mr. BURCHARD said ; 

Mr. C?EAKER : The official investigation made 
by a committee of the Senate, and published 
since this Congress convened, has disclosed to 
us that in portions of the Union secret organ- 
izations exist, banded together to prevent the 
free exercise of civil and political rights. 
Through their agency the lives and persons 
of political opponents are doomed to violence 
and outrage and the perpetrators of the crime 
screened from detection and punishment. 
Where they have sprung up life is insecure 
and murder goes unpunished. The victims 
of their hate, bruised and maimed for life, 
abandoning home and possessions, are com- 
pelled to flee in terror to other regions for 
safety. 

The civil authorities are unable or unwilling 
to repress these outrages. Lawless vi^olence 
and* widespread terrorism prevent the main- 
tenance of order and interrupt the adminis- 
tration of impartial justice through the courts. 
Secret,oath-bound conspiracies deny the equal 
enjoyment of the inherent rights belonging to 
citizens of the United States. Assaults, beat- 
ings, mayhems, and murders are secretly 
planned and swiftly and surely executed in 
obedience to their edicts. The existence of 
such organizations is admitted, the fact is 
patent, the proof incontrovertible. Their acts 
attest their character and object ; their oaths 
reveal their aim and design. 

Fitly two witnesses were examined by the 
Senate committee, twenty-nineof them Repub- 
licans and twenty-three Democrats, amongthe 
latter six who acknowledge that they had been 
members of the Ku Klux Klan under its dif- 
ferent names. No man can read the testi- 



mony and doubt the existence, origin, unlaw- 
ful purpose, and unhallowed deeds of these 
organizations and conspiracies. 

if any legislation can be devised by means 
of which it will be possible to restore peace 
and order to those sections of the country dis- 
tracted by these terrible outrages, every lover 
of his country should give the measure his 
cordial and earnest support, unless greater 
evils may result from its enactment. I, for 
one, am willing to exercise the powers we have 
for the protection of life and public order to 
the fullest extent. In a matter of doubt I am 
ready to go to the extreme verge of fair coq- 
struction that will justify Federal intervention. 

Before deciding, however, it will be well to 
examine carefully our constitutional power to 
act, and the existing legislation touching upon 
this subject. 

EXISTING LEGISLATIO.V. 

The attention of Congress has heretofore been 
called to these disorders, and in the enforce- 
ment act of May, 1870, two sections were 
inserted on the motion of Senator Pool, of 
North Carolina, designed to repress and punish 
these acts of lawlessness incited to prevent the 
enjoyment of constitutional, civil, and political 
rights. 

The gentleman from Ohio [Mr. Shellabar- 
ger] said in his able argument that a doubt 
had been expressed whether sections six and 
seven of that act did not apply, solely to con- 
spiracies to prevent the enjoyment of the right 
to vote or hold office, and not to violations of 
the rights secured by the fourteenth article of 
amendments. Subsequent sections, however, 
clearly relate to other civil rights. Those sec- 
tions not only provide for the punishment of 
conspiracies formed with intent to violate any 
provisions of that act, but to those designed to 
prevent or hinder the free exercise and enjoy- 
ment of any right or privilege granted or 



, 7? ^'^ 



2 



securpd by the Constitution or laws of the Uni- 
ted States. Language need not be bro'<fder or 
mote specific. 

Section thirteen provides : 

"Itshal] be lawful for the President of the United 
States to employ such part of the laid or naval forces 
of the United States or of the militia as shall be 
necessary to aid in the execution of judicial process 
issued under this act." 

Sectiotis sixteen and seventeen contain the 
substantial features of the civil rights bill, spe- 
cifying particuhif rights which shall be secured 
and equally enjoyed and the punishment for 
their infraction under color of State or other 
autiiority. But as if to make the law more 
complete, certain, and general, in section eight- 
een it specifically reiinacts the civil rights bill 
itself. If these enactments have been found 
inadequate I shall gladly vote for any consti- 
tutional provision to give ihem greater effi 
ciency. If, in the description of the offense 
made or degree of punishment, method, place, 
or form of judicial investigation, greater cer 
tainty for the redress of these wrongs can be 
secured, this Congress ought to supply the 
defects in previous legislation. 

The continuance of disorder, however, may 
not have resulted wholly from the insufficiency 
of this legislation. Law is designed to be a ter- 
ror to evil-doers, as well as to provide retribu- 
tion for transgression. ItSf)rohibitions are pow- 
erless without their enforcement. Detection, 
indictment, conviction, sentence, and punish- 
ment must follow the commission of crime 
before the statute exerts its full salutary effect 
in protecting the rights of the citizen. Knowl- 
edge of the law, its pei>alties, and of the cer- 
tainty of punishment must come to the com- 
munity. The statute passed in May, 1870. 
Was then deemed, and would now seem, ample 
in its provisions and penalties for the punish- 
ment and ultimate repression of these crimes. 
Has there been time to test its sufficiency tor 
this purpose? 

Hon. G. W. Brooks, a United States district 
judge, whose district embraces the whole State 
of North Carolina, testified before the Senate 
committee that as yet there had been no cases 
in the Federal courts involving the questions 
of these outrages. He says, on page 275 com- 
mittee's report: 

"The first cases of that character I have reason 
to believe will cotue up at a future term of the Fed- 
eral court. Arrests have been make by order of the 
United States commissioner, and the parties have 
been bound over for trial; but the cases are not yet 
in court. 

"Quextion. You have as yet had no cases in the 
Federal courts in North Carolina involving the ques- 
tion of outraKCS committed by this organization? 

"Answer. No, sir; not as yet." 

If trials had occurred and decisions been 
rendered upon this law, we could better judge 
what aicendmeiits are necessary or desirable. 
Yet since its passage these outrages have not 
been few nor unfrequent. They are still con 
tinued, and, in view of fresh and repeated 
atrocities aud the facts submitted ia the Sea- 



ate report, the President, in a special message, 
has requested Congress to consider whettier 
further legislation is necessary and can be 
devised more effectually to prevent their occur- 
rence. The select committee of the House 
to whom this message was referred have pre- 
sented the bill under consideration as a rem- 
edy for the evils complained of. 

They have, however, since the commence- 
ment of this discussion, yielded to the sugges- 
tions of friends, so far as to offer amendments 
to their bill and a substitute for the second 
section, which, without impairing its efficiency, 
will, if adopted, bring this legislation clearly 
within the constitutional powers of Congress 
and satisfy the scruples of those who might 
object to l;he original bill. I desire as briefly 
as possible to examine the provisions of the 
bill as first reported and as modified by the 
pending amendments, and to review those 
sections of the Constitution which justify or 
are relied upon to sustain congressional legis- 
lation for the suppression of this violence, and 
ascertain the extent of power for that purpose 
conferred upon the General Government, and 
show that if modified as proposed this bill is 
no assumption of unwarranted powers. 

REMEDIES PROPOSED BY THE BILL. 

The additional legislation proposed by the 
committee in this bill may substantially and 
briefly be slated : 

1. Afford an injured party redress in the 
United States courts airainst any person vio- 
lating his rights as a citizen under claim or 
color of Stale authority. 

2. Punish cotispiracies within the limits of 
a State to do acts in violation of the rights, 
privileges, and immunities to which any per- 
son is entitled under the Constitution and laws 
of the United Slates, when such acts within 
its jurisdiction would co-isliluie murder, arson, 
larceny, or other crimes enumerated in the 
bill. 

3. Authorize the President, without legisla- 
tive or executive request, to employ the mili- 
tia andArmy and Navy to aid in suppressing 
insurrections which obstruct the laws of the 
State, so as to deprive any portion of citizens 
of their constitutional rights. 

4. Authorize the President to suspend the 
privileges of the writ of habeas corpus and 
declare martial law in any district where unlaw- 
ful combinations are armed and so powerful as 
to overthrow the authorities, or the latter are 
in complicity with them, so as to render con- 
viction of offenders, and preservation of public 
safety impracticable. 

Are the remedies proposed for the preven- 
tion of these wrongs within the scope of Fed- 
eral jurisdiction? What defects or omissions 
of Slate legislation or administration for the 
protection of personal, civil, or political rights 
can the national Government supply? How 
and when may its powers be exercised for this 
purpose ? These questions concern the vital 



and fundamental principles of our system of 
**> gnvernineiit. Tiieir (iiiiil decisions may over 
turn the theory upon wliieh it was originally 
constituted. True, there is an ultimate tri 
bunal to |)ass upon the legality of these meas 
-?■ ures, but the words of many distinguished 
gentlemen who have spoken upon tliis bill, 
and above all the legislation indorsed by gen 
tlemen who took part in framing the amend 
metita under which authority is claimed, will 
become guides in construing the extent of 
the new powers added to the Constitution. 

Heartily sy in |)athizing with the oi)ject of this 
bill, I can but dissent from some of the pro- 
visions and details, and trust they will be mod- 
ified. To the first section, giving an injured 
party redress by suit at law in the United States 
courts in the cases enumerated, I can see no 
objections. If jurisdiction is now wanting, it 
should be conferred. 

The second section of the original bill reads 
as follows: 

Seo. 2. That if two or more persons shall, within 
the limits of any State, band, conspire, or combine 
together to do any act in violation of the rights, 
privileges, or immunities of any person, to which 
he is entitled under the Constitution and laws of 
the United States, which, committed within a place 
under the sole and e.Yclusive jurisdiction of the 
United Slates, would, under any law of the United 
States th'n in force, constitute the crime of either 
murder, manshi-ughter, mayhem, robbery, assault 
and battery, perjury, subornation of perjury, crim- 
inal obstruction of legal process or resistance of 
officers in discharge of official duty, arson or lar- 
ceny; and if one or more of the parties to said con- 
spiracy or combination shall do any act to effect the 
object thereof, all the parties to or engaged in said 
conspiracy or combination, whether principals or 
accessories, shall be deemed guilty of a felony, and, 
upon conviction thereof, sh;Ul be liable to a penalty 
of not exceeding $10,000. or to imprisonment not 
exceeding ten years, or both, at the discretion of 
the court. 

This sedition has had different interpreta 
tions. If it intends and must be construed to 
give the Federal courts jurisdiction to punish 
combinations or conspiracies to commit mur- 
der, mayhem, assault and battery within a 
State, 1 can find in the Constitution no war- 
rant for the exercise of such authority. If 
Congress can provide for the punishment of 
conspiracies to commit murder or arson, it can 
as well authorize the punishmentof the offenses 
themselves. J fit has this jurisdiction, a revo 
lution in the whole theory of our Government 
has been effected unknown Co the people. 

It is conceded here, and has been settled 
by repeated adjudications, that criminal juris- 
diction to redress invasions of personal rights 
was not, at least prior to the adoption of the 
thirteenth and fourteenth amendments, vested 
in the General Government. James Madison, 
expounding to the people of the IJuited States 
prior to its adoption the powers proposed to 
be granted to the General Government, said : 

"The Constitution of the United States divides 
the sovereignity; the portions surrendered by the 
States composing the Federal so vereigaty over spe- 
cified subjects, the p of tions retained forming the 



sriycreignty of each over tho rcsiidnary ilibjecits 
wilhin its sphere." — WritinuK of Jumea MnUison, 
vol. 4. page 61. 

"The powers delegated by the proposed Consti- 
tution to the Federal (Sovernmcnt are few and de- 
fined. Those which are to rciuaiu in the State gov- 
ernments arc numerous and iniiefinile. The former 
will bo exercised principally on external objects, 
as war, peace, negotiation, and foreign commerce ; 
with which last the power of taxation will, for the 
most part, be connected. The powers reserved to the 
several States Will extend to all the objects which, 
in the ordin ary course of affairs, concern the lives, 
liberties, and properties of the people, and the in- 
ternal onler, improvomiMit, and prosperity of the 
State." — Federalist, No. 45. 

It was in that sense adopted. The Supreme 
Court of the United States and of many States 
have given the same construction. Has the 
criminal jurisdiction of the United States been 
enlarged, so as to punish for offenses over 
which, until theadoption of those ametidments, 
the Stale courts had exclusive jurisdiction? 
In what ametidment is found this new grant 
of power? The thirteenth amendment secured 
to every person in the United States the right 
of personal liberty, abolished slavery, and un- 
doubtedly conferred upon Congress power to 
punish individuals who attempt to exact the 
involuntary service considered due from a slave 
to his master or to impose upon a freeman the 
disabilities that attach to the condition of 
slavery. Only to this extent is the power of 
punishing individual offenders enlarged by 
that amendment. Is such additional power 
conferred by the fourteenth amendment? If 
so, it is found in these sections : 

"Section 1. All persons born or naturalized in the 
United States, andsubject to the jurisdiction thereof, 
are citizens of the United States and of the ! vte 
wherein they reside. No State shall make or enl ce 
any law which shall abridge the privileges or im- 
munities of citizens of the United States; nor shall 
any State deprive any person of life, liberty, or prop- 
erty without due process of law, nor deny to any 
person within its jurisdiction the equal protection 
of the laws. 

"Sec. 5. The Congress shall have power to enforce 
by appropriate legislation the provisions of this 
article." 

The first defines what shall constitute national 
and State citizenship, and contains three pro- 
hibitions upon the State against — 

First. The making or enforcing of any law 
which shall abridge the privileges or immuni- 
ties of a citizen of the United States. 

Second. The deprivation of any person of 
life, liberty, or property without due process 
law. 

Third. The denial of the equal protectiou 
of the law. 

How far and in what manner has that sec- 
tion enlarged either the rights of the citizen 
or the means of enforcing their protection? 

CITIZE.VSHIP. 

The first clause reads: 

"All persons born or naturalized in the United 
Stales, and subject to the jurisdiction thereof, are 
citizens of the United States and of the State where- 
in they reside." 

By defining who are citizens of a State and 



of the United States it only establishes who 
areentitled to the rights, privileges, and immun- 
ities that belong to such citizenship. Except 
as it may have affected State citizenship by a 
constitutional definition it does not in any man- 
ner enlarge the privileges of citizens, although 
it may have increased the number who shall 
enjoy thera. It gives the same definition that 
Congress had already given to United States 
citizenship in the civil rights bill, which also 
accords with the understanding of the best 
authors who have discussed the question. 
Every person in the United States is a citizen 
or an alien. The word "citizen" is sometimes 
used in a sense synonymous with "people," 
and then includes aliens. But this clause in its 
definition excludes the latter class and limits 
the meaning of the term "citizen of the United 
States," as subsequently used, to persons born 
or naturalized in the United States and subject 
to its jurisdiction. 

PRIVILEGES AND IMMUNITIES. 

The next clause is this : 

"No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens 
of the United States." 

What is it a State is forbidden to abridge? 
It is not the privileges and immunities belong- 
ing to aliens or to ail persons within its limits, 
but to the class defined, citizens of the United 
States. The word " privilege" properly means 
a peculiar advantage or benefit ; " immunity" 
is defined to mean exemption from a burden. 
Rights that all possess are not privileges. The 
term would be a misnomer. 

"The words 'rishts,' 'privileges,' 'immunities 
are abusively used, as if they were synonymous. 
The word 'rights' is generic, common, embracing 
whatever may be Lawfully claimed. ' Privileges ' are 
special rights belonging to the individual or class, 
and not to the mass. 'Immunities' are rights of 
exemption only, freedom from what otherwise would 
be aduty, obligation, or burden. — Opinionn of Attor- 
neys General, vol. 10, page 407; Bates on Citizenship. 

The privileges and immunities of a citizen 
of the United States are those particular ad- 
vantages or exemptions secured or granted to 
them, but not extended to all persons, and 
from which aliens may lawfully be debarred. 
Can these words intend to include those inalien- 
able rights that belong to every human being 
everywhere, and in the enjoyment of which the 
stranger as well as the citizen is protected by 
every free Government'? Are the privileges 
and immunities of citizens identical with the 
rights common to aliens and citizens alike ? 
Do they not imply something in addition to or 
in aid of those rights, granted only to citizens 
or for their special protection'? Such is the 
ordinary use and legal construction of these 
words. The argument is weak, indeed, if to 
give the necessary jurisdiction to the General 
Government to punish the offenses described 
in the second section of the bill the right to 
life and personal security enjoyed both by alien 
and citizen must be called the privilege of the 
citizen. 



What some of the privileges and immunities 
of a citizen of the United States are the con- 
temporaneous legislation — the civil rights bill, 
passed at the same session by the same Con- 
gress that proposed this amendment — enum- 
erates. The meaning of these words, as used 
in the Constitution before the adoption of this 
amendment, has been discussed by writers upon 
elementary law and defined, to some extent, 
by courts and judges. The supreme court of 
Massachusetts gave a construction, as follows : 

"The privileges and immunities secured to the 
people of each State in every other State can be 
applied only in case of removal from one State into 
another." ******** 

"They shall have the privileges and immunities 
of citizens; that is, they shall not be deemed aliens, 
but may take and hold real esta'e ; and may. accord- 
ing to the laws of such State, eventually enjoy the 
full rights of citizenship without the necessity of 
being naturalized." — 6 Pickering, 92; Abbott va. 
Bagley. 

This is in harmony with the interpretation 
of the same clause given by those learned and 
profound commentators on constitutional law, 
Kent and Story. 

• In opposition to this construction of these 
terms the gentleman from Ohio [Mr. Shella- 
barger] and others who have defended the 
second section of this bill have quoted the 
obiter dictum of a single circuit judge, who 
defined them to be — 

"Protection by the Government; the enjoyment 
of life and liberty, with the right to acquire and 
possess property of every kind, and to pursue and 
obtain happiness and s^ifety, subject nevertheless to 
such restraints as the Government may justly pre- 
scribe for the general good of the whole." — 4 Wash- 
ingtoii's V. C. Jieports, 480. 

If this is the true meaningof the terms " priv- 
ileges and immunities" as used in the Consti- 
tution, why could not Congress before the 
adoption of the amendment protect and pun- 
ish for their deprivation"? No enlarged power 
of enforcement has since been conferred. 

Congress is empowered in the original Con- 
stitution to "make all laws which shall be ne- 
cessary and proper to carry into execution the 
powers" therein enumerated. The fourteenth 
amendtnent provides that — 

" The Congress shall have power to enforce, by ap- 
propriate legislation, the provisions of this article." 

The phraseology giving the power of enforce- 
ment is no stronger or broader in the latter 
than in the former^ The Constitution provided 
that — 

" The citizens of each State shall be entitled to all 
privileges and immunities of citizens of the several 
States." 

The amendment that — 

"No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens 
of the United States." 

By the former the "citizens are entitled;" 
by the latter, a "State is prohibited." 

Is not the power and extent of congressional 
enforcement as to individuals less questionable 
where the Constitution expressly invests a citi- 



zen with privileges and immunities than when 
it simply prohibits a State from abriiJging them? 
Congress had tiien as much power to secure 
them tothAcitizen and punish fortheir vioUitiou 
asithas now. Ifthe opinion I have quoted gives 
their true meaning, and thereby the amend 
ment vests in the General Government power 
to punish for crimes against life and person 
outside of exclusive Federal jurisdiction, the 
same power must have been conferred by the 
original Constitution. Ifthe General Govern- 
ment originally received no such power, this 
construction of the meaning of those words 
must be erroneous, and no such power can be 
claimed from their use in the amendment. 

Others have advocated the power of Con- 
gress to punish crimes as proposed in the sec- 
ond section of the bill, interpreting the words 
"immunities and privileges of a citizen of the 
United States" to mean the right secured to the 
people in the first eight articles of amendments 
to the Constitution. They hold that the four- 
teenth amendment forbids a Slate from abridg 
ing these enumerated rights. The gentleman 
from Massachusetts [Mr. Dawes] and tliegen-, 
tleman from Ohio [Mr. Bixgham] both de- 
fended this bill under such a construction of 
this clause. Unfortunately for their argument 
the privileges and immunities there enuuier- 
ated affecting life and personal security are only 
found in articles four, five, and six, and are 
specific limitations, relating to the mode of 
procedure or jurisdiction and extent of pun- 
ishment in cases of arrest or trial for supposed 
criminal offenses. 

Those articles are as follows: 

Article IV. 
The right of tbe people to be secure in their per- 
sons, houses, papers, and efFecLs, against unreason- 
able searches and seizures, shall not be violated, and 
no warrant shall issue but upon probable cause, 
supported by oath or affirmation, and particularly 
describing the pl.ice to be searched and the .persons 
or things to be seized. 

Article V. 
No person shall be held to answer for a capital or 
otherwise infamous crime, unless on a presentment 
or indictment of a grand jury, except in cases aris- 
ing in the land or naval forces, or in the militia, 
whea in actual service in time of war or public 
danger; nor shall any person be subject for the same 
offense to be twice put in jeo[)ar(ly of life or limb, 
nor shall be compelled on any criminal case to be 
a witness against himself, nor be deprived of life, 
liberty, or property, without due process of law; 
nor shall private property be taken for public use 
without just compensation. 

Article VI. 
In all criminal prosecutions, the accused shall 
enjoy the right to a speedy and public trial, by an 
impartial jury of the State and district wlierein the 
crime shall have been committed, which district shall 
have been previously ascertained by law, and to be 
informed of the nature and cause of the accusation; 
to be confronted with the witnesses against him; to 
have comi)ulsory process for obtaining witnesses in 
his favor; and to have the assistance of counsel for 
his defense. 

These are but privileges or immunities 
against the issue of judicial process and con- 
viction upon criminal charges except in the 



manner and cases authorized. The taking of 
life or injury to person is not there forbidden 
to individuals or the right to Hie and liberty 
afhrrned as in the Declaration of Independence. 
1 cannot see, therefore, how th:i application of 
these eight amendmeuts to the Slates, or even 
giving the General Government auihoriiy to 
secure to its citizens all the privileges and im- 
munities there asserted, can be held to confer 
the right u[)on the Federal courts to punish 
murders or other offenses against life and 
person. These elaborate arguments as to what 
are the privileges and immunities of citizens 
of the United States have litile pertinency to 
this bill. The constitutional prohibition is 
ai^aiiist a State's making or enforcing a law 
abridging them ; the second section of the bill 
makes no reference to State laws or the action 
or non-action of State authority, it relates to 
the crimes and conspiracies of private indi- 
viduals. 

As in the first section of the fourteenth 
amendment all the prohibitions are upon 
Stales, let us inquire 

WHAT IS here meant BY A STATE ? 

The Constitution recognized existing and 
future subordinate political governments called 
States. Every (titizen of the Uniied States 
is a citizen of the State wherein he resides. 
He sustains relations to the General Govern- 
ment directly as an individual, and indirectly 
as a citizen of a Slate. A duty enjoined upon 
a State evidently can only be performed by 
and through its people, but a State implies 
the whole body of the peoplej organized for 
political purposes under a government to which 
powers have been delegated to act for and in 
the name of the whole. Thus organized, the 
people compose the State and act, not individ- 
ually, but in their collective capacity, through 
agents, either by ordinances through delegated 
conventions, or through legislative, executive, 
or judicial officers, acting under a State con- 
stitution and laws for the State in the dis- 
charge of official duties and functions. 

In the enforcement of the observance of du- 
ties imposed directly upon the people by the 
Constitution, the General Government applies 
the law directly to persons and individual acts. 
It may punish individual3»for interference with 
its prerogatives and infractions of the rights it 
is authorized to protect. For the neglect or 
refusal of a State to perform a constitutional 
duty, the remedies and power of enforcement 
given to the General Government are few and 
restricted. It cannot perform the duty the 
Constitution enjoins upon the State. If a State 
fails to appoint presidential el^tors, or its 
Legislature to choose Senators, onts people to 
elect Representatives, Congress cannot act for 
them. Nor do prohibitions upon States author- 
ize Congress to exercise the forbidden power. 
Ii may doubtless require State officers to dis- 
charge duties imposed upon thetn as such offi- 
cers by the Constitution of the United States. 



6 



A State ofiBce must be assumed with such lim- 
itations and burdens, such duliea and obliga- 
tions, as the Constitution of the United Slates 
attaches to it. The General Government can- 
not punish the State, but the officer who vio 
lates his official constitutional duty can be 
punished under Federal law. What more 
appropriate iejxislation for enforcing a consti- 
tutional prohibition upon a State than to 
compel State officers to observe it? Its viola- 
tion by the State can only be consummated 
through the officers by whom it acts. May it 
not then equally punish the illegal attempts of 
private individuals to prevent the performance 
of official duties in the manner required by the 
Consiituiion and laws of the United States? 

The Federal courts have repeatedly held that 
they could require municipal and county offi- 
cers to perform the duties imposed uponthem 
by State laws in levying taxes, when such tax 
became necessary to collect a judgment in their 
courts against such city or county, although all 
the power and authority of such officers was 
derived from State laws. It can issue its man 
dates to such officers and enforce obedience by 
penalties and imprisonment. Cannot Congress 
provide to puTiish conspiracies to prevent the 
performance of duties it can compel such offi- 
cers to discharge? Can it not, then, go as far 
in requiring State or county officers to perform 
those official duties,' or at least those minis- 
terial acts which protect a citizen in the enjoy- 
ment of his constitutional rights, as it can in 
com[)elling the discharge of those which merely 
secure the enforcement of a legal obligation? 
Is the power greater when official duty con- 
cerns property than when it concerns life and 
person? if the Federal Government can com- 
pel State officers to act under State laws in the 
coUeciiou of a money bond, can it not insist 
upon their performance of duties imposed by 
the Constitution upon State officers by means 
of which equal protection is secured for life 
and person? The next clause is : 

" Nor shall any State deprive any person of life, 
liberty, or property, without due process of law." 

Is the power to punish individual crimes 
conferred upon the General Government by 
this clause? The deprivation must be the 
action of the State through its officers repre- 
senting the State. The prohibition was un- 
necessary as to private persons. No person 
had or has the right, except in necessary self 
defense or under governmental sanction, to 
deprive another of life, liberty, or property. 
This limitation is upon the State, as the simi- 
lar prior limitation in the Constitution was 
upon the national authority. Neither the na- 
tional nor the State governments can now 
deprive a person of life, liberty, or property 
without due process of law. This clause does 
not relate to the lawless acts of private indi- 
viduals depriving persons of life, lilierty, or 
properly. Such acts are no more the action 
of the State than of the Unileu States. 



KQUAL PROTECTION. 

The last clause of this section is this: 

"Nor deny to any person witliin its jurisdiction 
the equal protection of the laws." 

It also is a prohibition upon a State, but wide 
and general in its application. It does not 
enjoin upon the Stale that it shall provide pro- 
tection by its laws, but that it shall not dis- 
criminate in that protection. The protection 
must be extended equally to all citizens. This 
duty must be performed through the legisla- 
tive, executive, and judicial departments of 
its government. If the law-making [lOwer 
neglects to provide the necessary statute, or 
the judicial authorities wrongfully enforce the 
law so as to neutralize its beneficial provisions, 
or the executive allows it to be defied and dis- 
regarded, has not the State denied the- enjoy- 
ment of the right? 

If the State Legislature pass a law discrim- 
inating against any portion of its citizens, or 
if it fails to enact provisions equally applicable 
to every class for the protection of their person 
and property, it will be admitted that the State 
does not afford the equal protection. But if 
the statutes show no discrimination, yet in its 
judicial tribunals one class is unable to secure 
that enforcement of their rights and punish- 
ment tor their infraction which is accorded to 
another, or if secret combinations of men are 
allowed by the Executive to band togf^lher to 
deprive one class of citizens of their legal 
rights without a proper effort to discover, 
detect, and punish the violations of law and 
order, the State has not affi)rded to all its 
citizens the equal protection of the laws. 

CONTEMPORANEOUS INTERPRETATION . 

The debates upon the fourteenth amend- 
ment prior to its passage in the House clearly 
show that it was not understood or intended 
that the first section should confer upon Con' 
gress the power to enforce its provisions upon 
private individuals by general affirmative legis- 
lation. The interprecalion given to it by gen- 
tlemen who then debated it, and especially by 
those who advocated its passage, has almost 
an authority in construing its meaning equal 
to that of the writings of Madison and Ham- 
ilton in the Federalist pending the adoption 
of the original Constitution. Of several who 
entertained similar views I have only time to 
refer to one. the distinguished gentleman from 
Ohio, [Mr. BiXGHAM.] who was a member of 
the Reconstruction Committee that reported 
this section as it passed the House, and as it 
now stands, except the first clause, defining 
citizenship, which was added in the Senate. As 
the vote was about to be taken on its passage 
in the House he said: 

"That great want of the citizen and stranger pro- 
tection by national law from unconstitutional State 
enactments is supplied by the first section of amend- 
ments. That is the extent; it hath no more." 

He held up before the House and to the 



world the interpretation to b« given to this 
section. It supplied, he said, protection by 
national law against — what? Offenses aeainst 
pergonal rights committed by private individ- 
uals? No: simply against unconstitutional 
Slate enactments. And, to fasten this meaning 
and guard against possibility of doubt in the 
future, he added, ''that is the extent," and 
clinched this assertion so as to exclude all 
claim of other construction by saying, " it hath 
no more." 

A fair construction of the Constitution, as 
amended, leads, it seems to me, to these con- 
clusions: 

1. That the amendments to the Constitution 
do not enlarge the power of Congress to pro- 
vide for the punishment of ordinary felonies. 

2 That the General Government not only 
can, through its courts, set aside an unconsti 
tutional law and treat it as void, but, can pun- 
.isli State otHcials who willfully and wrongfully 
make or execute it, or neglect the duties im- 
posed upon them as such officers by the Con- 
stitution of the United States. 

3. That willful and wrongful attempts of 
individuals to prevent such 'officers perform- 
ing such duties can be punished by the United 
States. 

Mr. Speaker, such is the scope of this bill, if 
the amendment proposed by the committee is 
adopted. 

That amendment obviates in a great measure 
the objections and the doubtful construction as 
to the extentof jurisdiction for the punishment 
of crimes intended by the bill. It is not denial 
of protection, but of equality of protection, 
which constitutes the offense against the Uni- 
ted States. The conspiracies it seeks to pun- 
ish are those designed lo prevent the equal and 
impartial administration of justice. Tuese are 
essentially different from combinations and 
conspiracies to resist the execution of ordinary 
process. They must be aimed to prevent the 
enjoyment of equal civil rights. The grava- 
men of the offense is the unlawful attempt to 
prevent a State through its officers enforcing 
in behalf of a citizen of the United States his 
constitutional right to equality of protection. 
It is with this view that lliis legislation is com- 
petent. The civil rights and enforcement, bills 
heretofore passed provided for the punishment 
of those acting as State officers who attempted 
to execute the laws of a State in conflict with 
the Constitution of the United States. Is not 
an individual acting as a State officer, upon 
whom, as such officer, the Constitution and 
laws of the United States impose the perform 
ance of those duties, also amenable to the laws 
of the United States for their non-performance? 
If the refusal of a State officer, acting for the 
State, to accord equality of civil rights renders 
biin amenable to punishment for the offense 
under United States law, conspirators who 
attempt to prevent such officers from perform- 
ing such duty are also clearly liable. 



The hill thus amended will — 

1. Afford further redress for violations under 
State auihoriiy of constitutional rights. 

2. Punish conspiracies to deny the equal 
protection of the laws through l!ie means and 
agencies by which such protection is afforded. 

3. Authorize the President lo employ the 
militia and Army and Navy, or volunteers, to 
sup()re.ss insurrections which obstruct the laws 
of the United States and the State so as to 
deprive a |)ortion of the people of the Slate 
of their rights as citizens. 

4. Allow the suspension of the privileges of 
the writ of habeas corpus when such insurrec- 
tion becomes a rebellion. 

As these provisions may tend to the better 
enforcement of law and order and the pro- 
tection of civil and i)olitical rights, and are not 
obnoxious, in my judgment, lo the objections 
that would lie to the original bill, 1 hope, 
therefore, that the amendments will prevail 
and the bill become a law. 

SUSPEXSIOX OP HABEAS CORPUS. 

The power proposed to be given to the Presi- 
dent to suspend the privileges of the writ of 
habeas corpus is chiefly olijectionaijle as a 
precedent. I'he Executive has not suggested 
the impossibility of effectively using the Army 
and Navy to aid the civil authorities without 
suspending the privileges of the writ. The 
bill reported by the chairman of the llecon- 
8tructioii Committee of the last Congress [.Mr. 
Butler] did not provide for such suspension, 
neitherdid the bill lie introducedat this session. 
It is one of the prerogatives of a citizen and the 
great bulwark of libeny. The denial of its priv- 
ileges is only justifiable when in case of inva- 
sion or rebellion the public safety requires it. 

If the exigencies have arisen which seem 
now to require the denial of the writ 1 shall 
cheerfully vote for its immeuiate or future sus- 
pension. Is there any reasonable anticipation 
that a rebellion such as is described and is 
defined by this bill is to be expected before the 
next session of Congress? If, however, deemed 
neceSsary by the House, and this clause of the 
bin is retained, I have no tear that the power 
will be abused by the President. It will do 
no harm, in my judgment, but as a precedent. 
To no man would I intrust the wide discre- 
tion sooner than to the present Executive. His 
often-expressed views as to the duty of the 
Executive to enforce the laws provided by the 
legislative department ; his cautious exercise 
of the authority and powers intrusted to him 
during the war of the rebellion ; his high char- 
acter, honesty of purpose, and love of liberty 
and order, areguaranlees that in his hands there 
would be no abuse of this authority, but that it 
would be used for the safety and protection of 
the riglits of the citizens and the preservation 
of order. 

Mr. Speaker, I have been surprised at the 
character of the attacks made upon the Pres- 



B 



ident by gentlemen on the other side of the 
House in connection with this measure. That 
those who have been sent here by disloyal con- 
stituencies stould maintain the prejudices, dis- 
like, and hate entertained by their people dur- 
ing the war, is easily accounted for and not 
unexpected. But the most bitter tirades and 
invectives come from many northern Demo- 
crats, who live among Union soldiers that 
glory and boast of their proud service under 
the great captain. Where is there a man of 
this generation who in faithful service and 
substantial results has done more for his coun- 
try than General Grant? Take his military 
career, from captain to general, and what more 
marked example did the war produce of earn- 
est effort for the faithful performance of every 
duty? What more conspicuous instance of 
perfect subordination to superior authority, 
civil and military? What modesty character- 
ized his greatest achievements! How unos; 
tentatiously he assumed the higher and still 
higher honors and responsibilities which an 
anxious people urged should be conferred upon 
him ! Having safely led the defenders of the 
Union through those dark hours of conflict, 
what praise was too great, what encomiums too 
flattering, what panegyric too laudatory to give 
full expression to the universal gratitude? 

But not yet was the measure of the national 
debt to General Grant complete. Occupying 
the highest rank at the head of the Army, a 
position to which he was raised as a special 
testimonial for his great services, the tenure 
and emo!uments_of which could hardly fail to 
continue for life, at the call of the nation he 
reluctantly consented to receive their suff^rages 
and to enter upon the discharge of, to him, new 
and untried duties. The field of political con- 
tention was foreign to his tastes and adverse 



to his wishes; but he hoped, and the great 
party that supported him and the country be- 
lieved, that he more than any other man could 
accomplish this: allay the bitterness and hos- 
tility to the Union, subdued but not eradicated 
from disloyal breasts by the results of the war, 
and bring peace, safety, and prosperity to the 
people. If this desire has not been wholly ful- 
filled it is not for want of noble magnanimity 
and lenient conduct and conciliatory disposi- 
tion toward those who had participated in the 
rebellion. It is possible that this forbear- 
ance and generosity of the Government and of 
General Grant's administration may have been 
misconstrued in those portions of the South 
where these disorders and violence exist. The 
desperate and lawless may have come to regard 
leniency and magnanimity in the punishment 
of treason and rebellion as evidences of weak- 
ness on the part of the Government. If so, 
they must be undeceived. They must know that 
the national Government is powerful enough 
to punish as well as forgive its enemies and to 
protect its friends; that it can suppress secret 
disloyal conspiracies as well as open revolt and 
armed rebellion ;• the nation has been mag- 
nanimous to its foes, let it be just to its loyal 
citizens. Let it shield its humblest supporter 
from the machinations of those who would as 
of old suppress free speech and free thought 
and still cherish their hatred for the Union 
and love for the " lost cause." 

The enforcement of the provisions of this 
bill and the exercise of the powers conferred, 
will aid in the restoration of order, the protec- 
tion ofthe citizen in the exercise of his civil 
and political rights, tranquillize the disturbed 
portions of the Republic, and realize the 
prayer of the President and responsive wish 
of the American people, "Let us have peace." 



Printed at the Congressional Globe OflSce. 



LB/XgTZ 



